The Crown attorneys in the Tim Bosma murder case have taken the extraordinary step of applying to the attorney general for permission to go straight to trial.

Tim Bosma, shown with wife Sharlene, was killed in May 2013 after taking two men on a test drive of his pickup truck.

By:Susan ClairmontHamilton Spectator, Published on Fri Jun 20 2014

The Crown attorneys in the Tim Bosma murder case have taken the extraordinary step of applying to the attorney general for permission to go straight to trial.

The Spectator has learned assistant Crowns Tony Leitch and Craig Fraser of Hamilton have applied for a direct indictment, which — if granted — would eliminate the need for a preliminary hearing.

Direct indictments are very rare, are only granted in the most serious and complicated cases and generally indicate the Crown believes it has a strong likelihood of conviction.

The preliminary hearing for Dellen Millard, 28, and Mark Smich, 26, is scheduled to begin Sept. 8 and is set to last eight weeks. Its purpose is to allow a judge to determine if there is enough evidence to commit the case to trial.

From a Crown’s standpoint, going straight to trial can speed up the judicial process, reduce violations of publication bans, spare witnesses from testifying twice and the victim’s family from going through two lengthy hearings, and keep the defence from knowing the Crown’s strategy.

For the defence, it eliminates the opportunity to prove to a judge that there is insufficient evidence for a trial and takes away the chance to hear the Crown’s case.

Millard and Smich are charged with the first-degree murder of Bosma, who left his wife and small daughter on May 6, 2013, to take two strangers for a test drive of the truck he was selling.

Bosma, 32, never returned home. Homicide investigators believe he was killed within hours, his body incinerated.

Both men are also charged with the first-degree murder of Laura Babcock, 23, of Toronto who has been missing since June 2012.

Millard is further charged with the first-degree murder of his father, Wayne Millard, whose death in November 2012 was originally ruled a suicide.

Contacted about the application, Fraser referred the matter to the Ministry of the Attorney General.

Spokesperson Brendan Crawley said in an email: “The ministry does not comment on whether requests for direct indictments have been made in a specific case. As this matter is currently before the court, we have no further comment.”

Although the Criminal Code of Canada gives an accused charged with a serious offence the right to a preliminary hearing, that right isn’t guaranteed by the Charter of Rights and Freedoms.

Direct indictments are permitted by the Criminal Code but are more of a bureaucratic or political decision than a legal one.

They are approved by the attorney general or deputy attorney general rather than by a judge in a courtroom. While both the Crown and defence can make submissions to the attorney general, there is no opportunity to appeal the decision.

Defence lawyers have unsuccessfully challenged the Crown’s direct indictment power in court, arguing it violates an accused person’s constitutional rights to fully defend their criminal charges.

Ontario’s Crown Policy Manual says: “This power is an extraordinary one and is used infrequently in Ontario.”

Alan Young, a professor at Osgoode Hall Law School at York University, calls the direct indictment provision “a historical relic” that is rarely used and often questionable.

He says it can be used successfully in a case that has “taken years to get through the system” and the attorney general sees as needing a push to get to the trial. Particularly if there is a risk that some of the key witnesses or a victim could die before trial.

It is also used when it “would be injurious to the public interest” to hear horrible details of a crime more than is necessary, such as in the case of Paul Bernardo who in 1994 was sent directly to trial for murdering two schoolgirls.

Young also says in particularly high-profile cases, bypassing the preliminary hearing may help to ensure publication bans are not breached.

And if the case relates to other cases before the court, the Crown may have concerns about the timing of certain evidence being made public, says Young.

In Ontario, direct indictments have been granted in only a handful of the highest profile cases — mostly murders. Michael Rafferty, convicted of killing 8-year-old Tori Stafford, was ordered in 2010 to proceed straight to trial.

Smich and Millard made a brief court appearance Thursday by video, along with Millard’s girlfriend Christina Noudga, who is charged with being an accessory after the fact in Bosma’s death.